One Danger Of Making Official Public Statements — During Trial: Fosamax® Edition


One week ago today, Whitehouse Station put out a press release, essentially setting forth what would be its opening statement in the Secrest Fosamax® ONJ bellwether trial, now underway in Manhattan’s federal District Court.

That choice “opened the door” to this: an online San Francisco Chronicle article, detailing the plaintiffs’ lawyers opening arguments, in response (and allowing an ad to solicit additional potential Fosamax ONJ plaintiffs!).

Merck can scarcley be heard to complain about this influencing potential future jurors, when it has done essentially the same — especially since its press releases garner much wider attention from the main stream media.

As I say, it is highly unusual to see this permitted — a rehash of the opening argument, by the involved lawyers — in the form of a press release by the lawyers, all permitted by the trial judge:

. . . .On September 8, 2011, opening statements in Secrest v. Merck, a Fosamax lawsuit that is part of the consolidated litigation, In re Fosamax Products Liability Litigation (“MDL No. 1789”), took place. The bellwether Fosamax lawsuit is pending in the U.S. District Court for the Southern District of New York before Judge John F. Keenan. This is the fifth Fosamax lawsuit to go to trial and is expected to last several weeks. The plaintiff in this Fosamax lawsuit, Linda Secrest, alleges that as a result of taking the bisphosphonate, she developed osteonecrosis of the jaw (“ONJ”), a serious side effect of Fosamax. The Fosamax lawsuit also alleges that Merck failed to adequately warn consumers that ONJ was a potential side effect of Fosamax. In addition to this current Fosamax lawsuit, Merck is also defending thousands of others filed by individuals who suffered Fosamax side effects, including those who sustained Fosamax femur fractures.

Plaintiff’s Opening Statements: ONJ Is A Serious Side Effect Of Fosamax

The opening statements made by plaintiff’s counsel in the Fosamax lawsuit summarized the points submitted to the Court in Plaintiff’s Pre-Trial Memorandum* (Case No. 1:06-cv-06292-JFK). As described more fully in the Pre-Trial Memorandum, plaintiff’s counsel told the jury that: (1) Fosamax causes ONJ; (2) it was reasonably foreseeable to Merck that Fosamax would cause ONJ; (3) Merck insufficiently monitored post-marketing adverse event data; (4) Merck made misleading representations regarding ONJ; (5) Merck made no attempt to study the risk of ONJ relative to Fosamax; and (6) Merck overstated the efficacy of Fosamax.

If you or a loved one sustained a side effect of Fosamax, such as a femur fracture, you may be entitled to compensation for medical bills, pain and suffering, lost wages and other injuries. . . .

Wild.

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